Yeng & Sun (No 2)

[2025] FedCFamC1A 134

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Yeng & Sun (No 2) [2025] FedCFamC1A 134

Appeal from:

Sun & Yeng (No 5) [2024] FedCFamC1F 702

Appeal number(s):

NAA 333 of 2024

File number(s):

SYC 8025 of 2022

Judgment of:

MCCLELLAND DCJ, GILL & BRASCH JJ

Date of judgment:

31 July 2025

Catchwords:

FAMILY LAW – APPEAL – RE-EXERCISE OR REMITTAL – Where the appeal was upheld – Where the parties filed written submissions as to whether the matter should be remitted or whether the Full Court should re-exercise power – Where the matter was remitted for rehearing before a judge other than the primary judge – Where the matter related to property

Legislation:

Family Law Act 1975 (Cth) s 79

Federal Proceedings (Costs) Act 1981 (Cth) s 8

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234

Marcin & Marcin (2020) FLC 93-956; [2020] FamCAFC 85

Sujatha & Gutierrez (2024) FLC 94-227; [2024] FedCFamC1A 223

Number of paragraphs:

12

Date of last submission/s:

16 July 2025

Date of hearing:

Determined on the papers

Place:

Sydney

Counsel for the Appellant:

Mr Looney KC with Mr Stapelton

Solicitor for the Applicant:

Longton Legal

Counsel for the First Respondent:

Mr Reeves

Solicitor for the First Respondent:

AHL Lawyers Pty Ltd

Solicitor for the Second Respondent:

XR Consulting Pty Ltd (Submitting Notice filed)

ORDERS

NAA 333 of 2024
SYC 8025 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR YEN

Appellant

AND:

MS SUN

First Respondent

MS HAU

Second Respondent

ORDER MADE BY:	MCCLELLAND DCJ, GILL & BRASCH JJ
DATE OF ORDER:	31 JULY 2025

THE COURT ORDERS THAT:

1.The matter is remitted for rehearing before a judge other than the primary judge.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

MCCLELLAND DCJ, GILL & BRASCH JJ

1. This decision relates to the question of whether, following the successful appeal of orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) pursuant to s 79 of the Family Law Act 1975 (Cth), the Full Court of the Federal Circuit and Family Court of Australia (Division 1) (“the Full Court”) should re-exercise discretion or whether the matter should be remitted for re-hearing by a judge other than the primary judge.

2. The matter came before the Full Court on 2 April 2025. On that day, the Full Court heard an appeal of orders made on 13 November 2024 by the primary judge in  Sun & Yeng (No 5) [2024] FedCFamC1F 702. The second respondent filed a Submitting Notice on 13 February 2025 and did not participate in the appeal proceedings.

3. The Full Court delivered judgment upholding the appeal on 18 June 2025. The appeal was upheld on the basis that the primary judge failed to provide adequate reasons for concluding that the relinquishment of the bonds by the husband’s mother constituted a gift to both parties, and that, in the absence of evidence of intention from the husband’s mother, it was unreasonable to find that the bonds were a joint contribution rather than one made solely by the husband.

4. In delivering judgment the Full Court made the below order requiring that:

   Within 21 days of the date of these orders, the parties are to file written submissions, of no more than 3 pages, in respect to the question as to whether the matter should be remitted for re-hearing before a judge other than the primary judge, or whether the Full Court should re-exercise discretion.

5. On 4 July 2025, the solicitor for the first respondent wrote to the Appeals Judicial Registrar and requested an extension of time for filing their client’s written submissions. This request was made in circumstances where the first respondent had retained new legal representation since the appeal was heard.

6. Upon considering the request, the Full Court granted the first respondent an extension of seven days so that the first respondent’s time for filing written submissions was extended until 16 July 2025.

7. Both parties have submitted that the matter should be remitted for rehearing. The appellant husband contends that a rehearing is appropriate where an error of law has been established on appeal, and that the re-exercise of discretion would require updated evidence regarding the nature and value of the parties’ assets; including real property in Australia and Country B, bank account balances, and ongoing contributions since the original hearing concluded in December 2023.

8. The first respondent wife similarly submitted that the re-exercise of discretion by the Full Court would necessitate a rehearing based on current circumstances, and that the parties must be given the opportunity to adduce evidence accordingly. The first respondent notes that the parties have not agreed on the specific facts upon which the Full Court could rely, which undermines the practicality of a re-exercise.

9. In undertaking any re-exercise, this Court would need to give the parties the opportunity to adduce updated evidence as to the nature and value of the assets of the parties as at the date of re-exercise: Sujatha & Gutierrez (2024) FLC 94-227 at [32] referring to Allesch v Maunz (2000) 203 CLR 172 at [30]-[31].

10. The Court accepts that the absence of agreement between the parties as to the factual basis for re-exercise, combined with the need for updated and potentially controversial evidence, renders it impracticable for the Full Court to re-exercise discretion. In those circumstances it is appropriate for the matter to be remitted for rehearing: Sujatha & Gutierrez (2024) FLC 94-227 at [31] citing with approval Marcin & Marcin (2020) FLC 93-956 at [161]-[162] and Lane & Nichols (2016) FLC 93-750.

11. Accordingly, the Court finds that it is in the interests of justice for the matter to be remitted for rehearing before a judge other than the primary judge.

    COSTS

12. The Court accepts that, in circumstances where the appeal was allowed on a point of law and that a rehearing has been ordered, the parties are entitled to apply for a costs certificate pursuant to s 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth). However, in circumstances where both parties are well resourced and the matter is eminently capable of resolution, we are not satisfied that the costs of the parties, in this matter, should be met by taxpayers. The application for costs certificates is therefore declined.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices McClelland DCJ, Gill & Brasch.

Associate:

Dated:       31 July 2025